In its motion for summary judgment unsealed yesterday, Google strongly asserted its "safe harbor" status in defense of a $1 billion lawsuit filed by Viacom over videos on its YouTube platform, and dropped a bomb of its own: Viacom employees were paid to secretly upload content to the site, even as the company sued.

In an intriguing development in the potentially landmark case, Google attorneys claim that Viacom "continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there." According to court documents, the company "hired no fewer than 18 different marketing agencies to upload its content," deliberately "roughed up" the videos "to make them look stolen or leaked," opened YouTube accounts "using phony email addresses," and "even sent employees to Kinko's" to upload clips from computers that couldn't be traced to Viacom.

"Viacom's efforts to disguise its promotional use of YouTube worked so well that even its own employees could not keep track of everything it was posting or leaving up on the site," the brief states. "As a result, on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement. In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself."

In addition, the brief charges that as a means to promote its shows, "Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users," and that executives as high up as the president of Comedy Central and the head of MTV Networks wanted clips to remain on YouTube. The development represents a twist in the case, blogged TechDirt's Mike Masnick. "The argument here rests on the fact that all books, music, and videos are automatically copyrighted in the U.S. at the moment of their creation," he notes. Therefore, "nearly every single item on YouTube is copyrighted-the real question is not whether the clips are copyrighted, but whether they are authorized by the rightsholder for display on YouTube...Given Viacom's own actions, there is no way YouTube could ever have known which Viacom content was and was not authorized to be on the site."

Google and Viacom each filed motions for summary judgment in early March, which were unsealed on March 18. In its motion, Viacom accused YouTube and Google of building a business on material it knew to be infringing, and disputed Google's claim to be a "safe harbor" under the Digital Millennium Copyright Act. But in its motion, Google eloquently defended its "safe harbor" claim, illustrating a key point: copyrighted content is not necessarily, automatically unauthorized content.

"The crux of Viacom's argument rests on trying to break the DMCA safe harbors because Google and YouTube execs knew that there was a lot of infringing content on the site," Masnick explains. "But Viacom's argument breaks down entirely when you realize it doesn't explain how Google could ever make the actual determination of which videos are infringing." Further, Google attorneys cited at least three key cases that "squarely" support YouTube's status as a "safe harbor" and argue that the site is "worlds apart" from the kind of peer-to-peer sites at issue in Viacom's key citation, the 2006 Supreme Court Ruling in MGM v. Grokster.

Viacom, meanwhile, has claimed its use of YouTube is not relevant, and that the 63,497 infringing clips at issue in the suit are, all of which, Google says, have been removed from YouTube at Viacom's request. But Google attorneys note that the number of allegedly infringing clips represents less than "1/200th of a percent" of the content hosted on YouTube, which includes everything from skateboarding dogs and dancing babies to college classes and political campaign speech to independent artists and reports from war zones.

If Viacom were to prevail, Google attorneys argue, it would have devastating effects on innovation, essentially requiring ISPs to assume all content not explicitly licensed, which characterizes the majority of content on the Web, is unauthorized. "You Tube...has given creators of all sorts a powerful new way to promote their work to a global audience," the motion argues. "Plaintiff's lawsuits seek to undo all that."

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